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37-643: EB-2 petitioners can avoid the PERM Labor Certification process by presenting as a 'national interest waiver'. NIW (National Interest Waiver) requires the foreign national to 'self-petition' so that they can file the I-140 form on their own behalf without involving any labor certification or a sponsoring employer. Petitioners still need to satisfy all EB-2 eligibility requirements related to having either either an advanced degree or its equivalent, or showing extraordinary ability. The ability to pursue

74-547: A decision to either approve, deny, issue a Request for Evidence , or issue a Notice of Intent to Deny is guaranteed to be made within 45 days. Physician national interest waiver is a specially designed category for physicians/doctors to work and conduct impactful research in the United States. It enables a clinical physician/doctor to adjust his/her status to a lawful permanent resident without actually demonstrating that eligible and qualified physicians are unavailable in

111-610: A green card through a National Interest Waiver is enabled by Section 203 (b)(2)(B)(i) of the Immigration and Nationality Act of 1990 and 8 CFR § 204.5. The guidelines as to how to qualify for such a Waiver are developed through USCIS guidance, currently based on a 2016 precedent decision of the USCIS Administrative Appeals Office called Matter of DHANASAR (see below). As with petitions seeking other types of immigration benefits, USCIS officers use

148-472: A model or plan for future activities; any progress towards achieving the proposed endeavor; and the interest of potential customers, users, investors, or other relevant entities or individuals. The third prong requires the petitioner to demonstrate that, on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labor certification. As per its Policy Manual, USCIS may evaluate factors such as: whether, in light of

185-539: A petitioner's appeal of a National Interest Waiver denial by a USCIS adjudicator at the agency's Texas Service Center. In overturning and reversing the original USCIS denial of the specific case (thereby approving the petition), the AAO established binding new guidelines for the adjudication of National Interest Waiver petitions. These requirements replaced previous guidelines stemming from the 1998 appeals case Matter of New York State Department of Transportation (known as NYSDOT in

222-506: Is US$ 715 . Request for Evidence A Request for Evidence ( RFE ) is a request issued by the United States Citizenship and Immigration Services to petitioners for residency, citizenship, family visas, and employment visas. Examples of petitions for which a RFE may be issued are Form I-129 (alien worker authorization), Form I-140 (immigrant worker authorization), and Form I-130 (family visas). The RFE

259-509: Is an immigrant visa preference category for United States employment-based permanent residency , created by the Immigration Act of 1990 . The category includes "members of the professions holding advanced degrees or their equivalent", and "individuals who because of their exceptional ability in the sciences, arts, or business will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of

296-584: Is exempt from the requirement that his or her employer first obtain a Labor Certification from the U.S. Department of Labor. A person may qualify for the waiver of the Labor Certification or job offer requirement if they can show that their work will be in the national interest of the United States. This benefit is popularly called the National Interest Waiver. The burden of proof in National Interest Waiver cases rests solely with

333-457: Is intended for use in cases where the adjudicator (the person evaluating the petition) believes that there is not enough evidence to approve the petition, but also believes that the petition may be redeemable, and that there is no clear factual or statutory basis for denial. The RFE, when used, should be as clear as possible about what types of additional evidence are needed to fill in the gap, and what inconsistencies or problems have been found in

370-561: Is received within the time indicated on the RFE, the USCIS will process the application without considering the additional evidence, which in most cases means a denial (because petitions where there was enough evidence to accept should not have RFEs in the first place). The petitioner has only one chance to respond to a RFE, When responding to a RFE, the petitioner may attach additional pieces of evidence over and above those explicitly requested in

407-525: Is sufficiently urgent to warrant forgoing the labor certification process. One factor USCIS' guidance deems evidence of the U.S. "still benefiting" even if other qualified U.S. workers are available is whether the proposed endeavor can realistically create many U.S. jobs. As with all other types of applications for immigration benefits, USCIS can issue Requests for Evidence to the petitioner when adjudicating EB-2 I-140 National Interest Waiver petitions. When issuing RFEs, USCIS may question whether each or any of

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444-606: The Department of State determined that the FY -2012 numerical limit for the worldwide employment-based preference must be 144,951, and the per-country limit must be 7% of the worldwide cap, regardless of the population of the country. Out of this, the EB-2 category is limited to 28.6% of the worldwide level, plus any numbers not used by the EB-1 category ("spillover"). In the case of India,

481-566: The USCIS . The statutory requirements may be found in the Immigration and Nationality Act (INA) at Section 203(b)(2) (8 U.S.C. 1153(b)(2)). The regulatory requirements may be found in the Title 8 Code of Federal Regulations (8 CFR) at section 204.5(k). There are two sub-categories of EB-2: Entrepreneurs may also qualify for the EB-2 category under certain conditions. As of September 2012,

518-737: The preponderance of evidence standard of proof, when evaluating whether evidence submitted by NIW applicants is sufficient to grant the Waiver. The processing time for the I-140 NIW usually varies from 6–15 months for petitions filed under Regular Processing . This depends on the service center and the adjudicating officer assigned by the United States Citizenship and Immigration Services ( USCIS ) to each petition. As of January 2023, petitioners may, for an extra fee, request Premium Processing for I-140 NIW petitions, under which

555-538: The DHANASAR framework by issuing new guidance to its employees through the addition of language to its adjudicator's manual (officially known as its Policy Manual ). The first prong, substantial merit and national importance, focuses on the specific endeavor that the foreign national proposes to undertake. The endeavor's merit may be demonstrated in a range of areas such as business, entrepreneurship, science, technology, health, culture or education. In determining whether

592-504: The I-140 petition is taken by the USCIS as an equivalent foreign degree, and not combination of education and experience. Additionally, in the EB-2 based I-140 petition, even if the Labor Certification application stated that the employer would accept a combination of education and experience in lieu of the bachelor's degree, for the purpose of establishing the requirement of a bachelor's degree followed by five years of progressive requirement,

629-471: The Labor Certification application. The employer must be able to prove its ability to pay the proffered wage at the time the priority date is established, and continuing until the beneficiary employee obtains the lawful permanent residence. The requirement of bachelor's degree or equivalent in the EB-2 I-140 petition can be established only by academic education and degree. Here, the language equivalent in

666-494: The RFE and the Notice of Intent to Deny (NOID): In cases where the USCIS simply needs answers to a few specific questions (such as a complete translation), it simply issues a Request for Clarification instead of a RFE. RFEs typically request one or more of the following types of evidence: The time within which the response to a RFE must be sent is indicated on the RFE. It generally varies between 30 and 90 days. If no response

703-469: The RFE by providing the evidence that is requested. The National Interest Waiver petition approval rate was approximately 80% for 2023, 90% for 2022, 86% for 2021, 85% for 2020, 90% for 2019 and 91% for 2018. The Biden Administration has issued executive orders and changed USCIS guidance making National Interest Waivers easier to obtain for STEM degree holders. In addition, other STEM-related executive orders have been considered by legal analysts to enhance

740-431: The RFE. The expected processing time for petitions is generally defined as the time till an approval, denial, RFE, or NOID is issued. Therefore, the time taken while waiting for a response from the petitioner is not counted as part of the processing time. After the petitioner responds, the expected additional processing time is comparable with the processing time for a complete first application. For petitions that request

777-411: The USCIS may not accept such proof to meet the threshold qualification requirement for the EB-2 I-140 petition. The national interest waiver, or EB2-NIW, is an employment-based second preference petition. It is so named because it asks that the otherwise required Labor Certification requirement be waived "in the U.S. National Interest". Thus, a beneficiary of a successful National Interest Waiver petition

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814-510: The United States would still benefit from the foreign national's contributions; and whether the national interest in the foreign national's contributions is sufficiently urgent to warrant foregoing the labor certification process. As of September 2012, the Department of State application processing fee for employment-based immigrant visas is US$ 405 . The fee for the USCIS Petition for Alien Worker ( Form I-140 ) as of April 1, 2024

851-419: The United States, and whose services in the sciences, arts, professions, or business are sought by an employer in the United States". Applicants (with the exception of applicants applying for an exemption known as National Interest Waiver ) must generally have an approved Permanent Labor Certification , a job offer, and their employer must have filed an Immigrant Petition for Alien Worker ( Form I-140 ) with

888-404: The application process. EB-2 immigration categories normally require the Labor Certification application. Once the employer has obtained the Labor Certification, the employer can file an I-140 immigrant petition for an alien with the USCIS. One purpose of I-140 petition that requires a certified Labor Certification is to establish that the employer has the ability to pay the offered wage stated in

925-546: The approval chances of certain NIW applicants. One commentator, Karl Muth, writing in Global Policy Journal and espousing a pro-immigration viewpoint, considers the liberalization of NIW guidance for STEM degreeholders and entrepreneurs Joe Biden's "biggest policy victory". An order was issued on the 30th of October 2023, titled "Safe, Secure, and Trustworthy Development and Use of Artificial Intelligence." to promote

962-794: The development of AI technology. Though not explicitly invoking National Interest Waivers, some legal analysts consider applicants with an AI-related proposed endeavor to have better chances of receiving approvals by being able to make stronger arguments that they meet Prong 1 and Prong 3 of the requirements. In response to the February 2, 2021 Executive Order 14012- Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans , USCIS amended guidance in early 2022 enabling more favorable adjudication of NIW petitions by STEM entrepreneurs and degree holders. EB-2 visa EB-2

999-482: The endeavor. The foreign national must be well positioned to advance the proposed endeavor, but is not required to show that he or she will succeed. The third criterion focuses on whether in light of the nature of the foreign national's qualifications or proposed endeavor, it would be impractical either for the foreign national to secure a job offer or for the petitioner to obtain a labor certification; whether, even assuming that other qualified U.S. workers are available,

1036-413: The evidence (more likely than not): The first criterion focuses on the specific endeavor the foreign national has proposed to undertake. The prospective impact may be local, national, or global in nature, but must have broad implications of national importance such as local economic improvement or a medical advance. The second criterion focuses on whether the foreign national has the ability to succeed in

1073-404: The evidence submitted so far. It is not intended for use for the adjudicator's reassurance in cases where there is enough evidence to approve the petition. It is sent to, and the response must be sent by, the petitioner (or the attorney representing the petitioner, in cases where the petition is filed through an attorney) rather than the beneficiary. The following are some key differences between

1110-473: The immigration law community). The three new requirements (known as "prongs") for approval of a National Interest Waiver petition are that: *(1)... the foreign national's proposed endeavor has both substantial merit and national importance; (2) that he or she is well positioned to advance the proposed endeavor; and (3) that, on balance, it would be beneficial to the United States to waive the job offer and labor certification requirements." USCIS further explained

1147-414: The individual three prongs are satisfied by the petitioner, in whole or in part. USCIS may also additionally question whether the general EB-2 requirements (such as degree and experience requirements) have been fulfilled. In some cases, USCIS can also solely question the fulfilment of EB-2 requirements but establish that the prongs have already been satisfied. It is the petitioner's responsibility to satisfy

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1184-430: The nature of the foreign national's qualifications or the proposed endeavor, it would be impractical either for the foreign national to secure a job offer or go through the labor certification process or whether even if there are other qualified U.S. workers available, the U.S. would still benefit from the foreign national's contributions. Another factor is whether the national interest in the foreign national's contributions

1221-436: The number of EB2 petitions approved over the last decade far exceeds the number of green cards available, leading to a large number of India-born EB2 applicants in the backlog awaiting visa availability. As of June 2023, the backlog for EB2 India is exceeds 426,000, whereas only 2800 green cards are normally available for EB2 India, excluding any spillovers. [REDACTED] The Bureau of Consular Affairs has more details about

1258-492: The particular location. The physician can also apply for the green card even if his/her employer is unwilling to file the petition on his/her behalf through the national interest waiver. In the United States, there always remains a shortage of physicians who can provide healthcare services to the disadvantaged areas. To apply for the PNIW category, eligible physicians must meet the set of requirements listed by USCIS . According to

1295-546: The petitioner. While the U.S. Citizenship and Immigration Services (USCIS) has not established specific criteria for approving national interest waiver petitions, the USCIS Administrative Appeals Office (AAO) held, in Matter of Dhanasar , 26 I&N Dec. 884 (AAO 2016), that a National Interest Waiver may be granted when the petitioner demonstrates the following criteria by a preponderance of

1332-400: The proposed endeavor has national importance, USCIS considers its potential prospective impact. This prong shifts the focus from the proposed endeavor to the foreign national. To determine whether the applicant is well positioned to advance the proposed endeavor, USCIS considers factors including: the individual's education, skills, knowledge and record of success in related or similar efforts;

1369-493: The regulations of USCIS , a physician may apply for the PNIW by working as a clinician in areas with a shortage. The applicant need to work in one of the following areas to qualify: Health Professional Shortage Areas (HPSA) Medically Underserved Area (MUA) Mental Health Professional Shortage Area (MHPSA) Veterans' Affairs (VA) facility Matter of DHANASAR is a precedent decision issued by the USCIS Administrative Appeals Office on December 27, 2016. This binding decision stems from

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